Citation Nr: 1510778
Decision Date: 03/13/15 Archive Date: 03/24/15
DOCKET NO. 10-11 052 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas
THE ISSUES
1. Entitlement to service connection for hypertension, to include as secondary to service-connected anxiety disorder and due to herbicide exposure.
2. Entitlement to an initial rating in excess of 30 percent for anxiety disorder.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
J. Abrams, Associate Counsel
INTRODUCTION
The Veteran served on active duty from October 1966 to March 1970, from
April 01, 1982 to June 29, 1982, and from November 1990 to June 1991.
These matters are before the Board of Veterans' Appeals (Board) on appeal from February 2007 and June 2007 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.
This case was previously before the Board in October 2014. At that time, the Board remanded the case for additional development. Unfortunately, for the reasons discussed below, another remand is required.
This appeal was processed using the Virtual VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should review this electronic record.
The issue of entitlement to service connection for ischemic heart disease has been raised by the record in a November 2011 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014).
The appeal is REMANDED to the AOJ. VA will notify the Appellant if further action is required.
REMAND
The development actions requested in the Board's October 2014 remand were not fully completed. A remand by the Board confers on claimants, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). It imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Accordingly, in the present case, the additional development specified in the Board's prior remand must be conducted prior to adjudication. In the October 2014 remand, the Board ordered the AOJ to "obtain an opinion to determine if the Veteran's hypertension is related to his exposure to herbicides during active duty." In a December 2014 Compensation and Pension (C&P) examination report, the VA examiner never specifically addressed whether the Veteran's hypertension was related to the Veteran's exposure to herbicides. A remand is necessary to obtain an addendum opinion to determine the etiology of the Veteran's hypertension and whether it is related to his exposure to herbicides.
Additionally, the Board notes that the January 2014 C&P Mental Disorders examination report was based on the Diagnostic and Statistical Manual (DSM) of Mental Disorders V. VA regulations have not yet adopted the DSM V so this examination report is invalid. On remand, a new VA examination is necessary to determine the current nature, extent, and severity of the Veteran's anxiety disorder.
Accordingly, the case is REMANDED for the following actions:
1. Obtain copies of the complete updated VA clinical records of all evaluations and treatment the Veteran received for his hypertension and service-connected anxiety disorder. All requests for records and responses must be associated with the claims folder.
2. After the completion of the foregoing, obtain an addendum opinion from the same examiner who conducted the December 2014 hypertension examination or, if unavailable, the Veteran should be afforded a new VA examination. If the December 2014 VA examiner determines that additional examination of the Veteran is necessary to provide the requested opinion, then one should be scheduled. The claims file and a copy of this remand must be reviewed by the examiner. The VA examiner should indicate in the report whether the claims file was reviewed.
The examiner is asked to address whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's hypertension is etiologically related to herbicide exposure during his active service in the Republic of Vietnam.
3. Schedule the Veteran for a VA psychiatric examination to determine the current nature and severity of his service-connected anxiety disorder. The examiner must use the DSM-IV Criteria in administering the examination. The claims folder and a copy of this remand must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report.
The examiner is directed to administer all necessary psychological testing of the Veteran, and to prepare a report which fully discusses his symptomatology and test findings as related to the diagnostic criteria for anxiety disorder. The examiner is requested to respond to the following:
a. Assign a numerical code under the Global Assessment of Functioning (GAF) Scale. The examiner should also indicate the degree of social and occupational impairment due to the Veteran's anxiety disorder;
b. In forming the requested opinion, the examiner is asked to review and discuss the lay statements of the Veteran in the claims file and the medical evidence of record.
4. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any part of the requested opinions without resorting to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made.
5. Upon completion of the above, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order.
The Appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).